In February 2006 in a village in Bangladesh, a woman
was awarded 101
canes for adultery. The primary evidence was that she became pregnant.
The former husband of the woman, who supposedly was responsible for this
woman's pregnancy, received a penalty of 10,000 Taka, as he was
absconding. [1] In early 2005, a woman accused of adultery was stoned to
death in Badakhshan, Afghanistan. [2] In 2002 Zafran Bibi in Pakistan was convicted
of Zina (adultery) and sentenced to death by stoning, even though she
claimed to have been a victim of repeated rape. [3] In 2001 Safiya Husaini,
from the Northern Nigerian state Sokoto, claimed to be a victim of rape,
was convicted for illicit sexual relationship and sentenced to death by
stoning by a local Islamic court. [4]

In all these cases, these women claimed that they were raped, but
they ended up convicted under the Shari'ah/Hudood law for adultery. Some
of these cases are well known and received worldwide attention. Had
these been isolated cases, it would have been different. However,
the overall statistics is more than disturbing. In case of Pakistan, "Of the 7,000 women in jail around the country
awaiting trial, 88 percent are accused of crimes under Hudood, according to the Lawyers for Human Rights and Legal Aid. Ninety percent of these women have no lawyer, and 50 percent do not know they are entitled to contact one. Most women accused of Hudood violations are acquitted, but lose an average of five years to confinement, and lose their reputations as well."
[5] Under the new Hudood law, the incentive for any woman to report any
rape is gone. "Hudood has also unwittingly become a major factor in rape cases. Many rape victims refuse to file charges, because under Islamic law, four male Muslim witnesses are required to prove charges of rape. Women who cannot produce this many witnesses often end up in jail themselves for adultery, a crime against the state punishable by stoning to death."
[5] Under such a caricature system, rape
victims have less reason to accuse anyone as a rapist.

This is a travesty of Islam, since Islam is
essentially "gender-egalitarian." [Quraishi, p. 288] In this paper, we examine the problems with these Hudood laws that
put women in a serious double jeopardy. Before proceeding further,
let me point out that the following is an important premise in my
approach to dealing with any contemporary Islamic issues. The essential
source of Islamic guidance is the Qur'an and the Sunnah. We are to be
respectful of and we must take into consideration the opinions of our
pious and capable ancestors and their valuable contributions. However,
we are not to imitate or follow them verbatim, if in conscientiously
understanding, interpreting or practicing Islam in contemporary times we
need fresh thoughts and solutions.

The problem

In 1979, under the military rule of late Gen. Ziaul Huq, the
Pakistani government decided to implement Shari'ah, a very
misunderstood, misinterpreted and misapplied concept. [Farooq_2] Hudood is plural
of Hadd, a few boundary limits for the lawful and unlawful from God. The
hadd punishments are specific, fixed penalties laid down by Allah for specified
transgressions or crimes. As part of that, a
comprehensive Hudood ordinance was enacted, which included The Offence
of Zina (Enforcement of Hudood) Ordinance, VII of 1979. Zina
(adultery/fornication) is
prohibited in the Qur'an and it is a punishable offence. This ordinance
defined zina a lot more liberally, where zina means adultery,
fornication, prostitution and rape. Thus, rape became a type of zina,
zina al-Jabr.

Notably, the classical Islamic
jurisprudence treated rape as a special case of assault, not of zina.
"Using ... examples of ‘Umar as sources, the Islamic legal
schools began recommending payment of compensation in rape cases and
dealing with rape as a violation of property, or ightisab (from
the root ghasb, or usurpation), of what belonged to
another." [Sonbol, p. 311] Unless it is treated as violation of the
property of the victim, this approach has some faults as at some levels
of jurisprudence, women are reduced to property and that must be avoided
and rejected. Notwithstanding that shortcoming, there is at least
potential to further develop this approach without the
"property" angle. However, by including rape under
zina, for all practical purpose,
it undermines the special dimensions of this crime. One related, pivotal
problem is the the witness requirement.

Anyone accused of rape is considered to have
been involved in zina
(adultery/fornication). The accuser (victim) must then produce four credible male
witnesses to give testimony against the accused that he has raped the
accuser. If the accuser fails to meet the witness requirement, then the
accuser, usually a female, is by default charged of zina and, if
convicted, given the punishment prescribed under the Hudood law. If the
female does not bring up the accusation of rape, then the woman is by
default charged with zina.

Unconsenting sexual
intercourse is termed zina-bil-jabr, and carries a tazir penalty
for the perpetrator of 25 years in prison and 30 lashes; there is also
a more severe hadd punishment, but, as noted, this has never
been carried out. However these penalties offer little protection to
women since, in practice, a woman who has been raped and makes an
accusation of zina-bil-jabr is laying herself open to
accusations of adultery, and thus to conviction for zina.
[Marcus, p. 9]

Many women who, once accused of zina,
have claimed to have been rape victims, were charged and imprisoned under this Hudood law, as they
failed to produce the supporting witnesses. Thousands of women have been
languishing in prisons of Pakistan under this Hudood law. A society that
presumably wants to implement such laws for protection of morality and
decency seems to be oblivious to the fact that these raped victims are
further sexually victimized in prisons by police. [6]

Also, pregnancy without marriage (or a
counter-charge of rape) is
recognized as a basis for prosecution for zina. It is not difficult to
contemplate that a woman can become pregnant due to rape, and even so,
it may not be easy in a male-dominated society to bring the charge of
rape against the rapist. There is no direct basis from the Qur'an
or the Prophet to treat pregnancy of unmarried women as a prima facie
evidence of zina. There are some prominent companions who have held it
as prima facie evidence, but that's their opinions. Neither there is any
unanimity on this among the Companions of the Prophet, nor any basis of it from the Qur'an
or the Prophet is given. The subsequent generations of scholars and
jurists have widely differed on this. [Quraishi, p.300] Any such
provision without direct sanction from the Qur'an or the Prophet can't
and shouldn't be given too high a status, where the social conditions
may prevent a woman becoming pregnant due to rape from bringing up the
rape charge.

Zina vs. Zina bil Jabr: Treating rape
as a subcategory of adultery

Zina relates to adultery or fornication -
any extramarital sex - and is prohibited in Islam. However, an essential
aspect of zina is that it is consensual. Rape, thus, can't be classified
under zina. The term zina bil Jabr is oxymoronic, because literally
translated, it means "consensual extramarital sex by force".
Had it been only a matter of oxymoronic expression or semantic, it wouldn't have
been of great significance. However, because it has serious legal
implications and has impacted the lives of many women, this matter can't be taken lightly.

A major problem with the orthodox Islamic
law, as exemplified in the Hudood Ordinance of Pakistan, is approaching
rape as zina bil Jabr. Because zina is legally prohibited and regarded
as morally one of the most reprehensible acts, the very charge of zina
bil Jabr casts a negative spotlight on the accused. A rape victim,
already a victim, is further traumatized and stigmatized by such label
that is regarded by the society as reprehensible. This label is an
obstacle to seeing and treating a raped victim, as a victim, and victim
only. Instead, the very charge is under a presumption that the victim
along with the rapist have been involved in a morally reprehensible
act.

Thousands of
women, who have claimed to be rape-victims, are now languishing in jail
or have their lives ruined even after being acquitted, due to trying
them under zina bil Jabr of Hudood Laws. [Jahangir and Jilani, chapters
III-IV] "No distinction has been made between Zina and Zina Bil
Jabr (rape), resulting in it becoming an instrument of exploitation and oppression."
[Niaz, 2001]

While Islam places very high value on
morality and decency, and thus there is harsh punishment for
promiscuity, the entire issue is also subject to Islam's essential
commitment to justice, with a special focus on protecting the weak and
the vulnerable. When this commitment is undermined, Islam itself is
undermined, contrary to the examples from the Prophet Muhammad.

While punishment for sex
outside of marriage may still seem harsh to some in the context of
contemporary Western society, the important point to note for the sake
of this study is that the Prophet did in fact differentiate
between consensual and nonconsensual actions and punished individuals
accordingly. This fact underscores the Prophet’s commitment to
justice and to women’s dignity and honor. [Norman, p.2]

Well, it is to be
acknowledged that Rape is one of those crimes that is most
difficult to prove in any society and thus extra considerations must be
there to protect the accused who might be innocent and to get justice
for the accuser who may have been a rape victim. [Jahangir and Jilani,
p. 13; Asma Jahangir's The Hudood Ordinances: A Divine Sanction is
probably the first and only systematic study of Hudood Ordinances and a
must reading.] Yet, how is it possible that Shari'ah or
Hudood laws that are purportedly based on Islam's explicit pursuit of
justice and protection of the weak and wronged end up either against the
wronged or exacerbating the problem? A major part of the problem
is that people often don't know about the problem in depth and the
scholars (especially religious scholars) rarely undertake any
systematic, research-oriented study before or after they pronounce
fatwas or enact laws.

Interestingly, all these
groups are looking at the Hudood Ordinances more in the light of what
they think they are, than what they actually are. Most participants in
the debate have not made an attempt at a serious and systematic study
of these laws. They have largely gone by impressions and their own
biases. [Jahangir and Jilani, p. 21]

First, the Qur'anic commandment regarding
zina and its punishment makes two things abundantly clear. (a) Islam
treats very sternly adultery/fornication or any sexual relationship
outside what is permissible. However, this is not based on the vigilance
of an watchful and intrusive role of the government. (b) The threshold of witness requirement makes any conviction virtually impossible.
Anyone, including the public authority, accusing someone (male or
female) of adultery has to produce four, credible and pious
eyewitnesses, who have seen at least the penetration. Such high and
strict evidentiary requirement for conviction for adultery/fornication can hardly ever be expected to be
fulfilled in a Muslim society. That's why the cases of punishment for
adultery during the time of the Prophet was generally based on voluntary
confession by someone, who, due to fear of God, wanted to have the
punishment of his or her sins in this world, in lieu of any punishment
in the life hereafter.

Yes, the punishment for
adultery/fornication in Islam is harsh, but the threshold for conviction
is so high that it is expected to be virtually non-existent. That, in contemporary times, there are
easy accusation and conviction, especially of so many women under the
Hudood Ordinance in Pakistan and where raped victims frequently end up
in jail, is simply inconsistent with the purpose of the Qur'anic commandment in this regard.

Secondly, women's witnesses are not
recognized and admitted. "At least four Muslim adult male
witnesses, about whom the Court is satisfied, having regard to the
requirements of
tazkiyah
al-shuhood [credibility of witnesses], that they are truthful
persons and abstain from major sins (kaba’ir), give evidence as
eye-witnesses of the act of penetration necessary to the offence."
[Quraishi, p. 290]

Inadmissibility of women's witnesses is a pathetic subversion of laws
and codes in the name of Islam. Except the arguable exception of women's
witness in case of business-related matters, women's witness needs to be
recognized at par with men. Even the exception is moot in modern
context, where women are successfully and competitively assuming
positions of responsibility at all levels of society, there is no reason
why in ALL respects witness of men and women should not be put on equal
footing. Notably, even if one wants to argue about the exception, where
the orthodox Islamic law allows qualified women to assume positions of judge,
it is ludicrous and utterly unacceptable that women's witness should be
rendered inadmissible even where they themselves are victims, or where
their lives are affected.

As far as the requirement of four Muslim
adult male witnesses, who are also credible, honest and pious, and who
must be eye-witnesses of the act of "penetration" is simply
mind-boggling. Let's consider the details. For four persons to witness a
sexual act or rape, it almost has to be a public event or an orgy (and
in case of rape, with a woman as non-consensual participant). Anyone familiar with Muslim
societies knows that it would be a rare event. That they have to be
eye-witnesses of "penetration" is a reasonable and just
requirement in case of proving zina (making conviction virtually
impossible), but it is an unacceptably high threshold
of evidence in case of rape. That the witnesses have to be pious to the extent that
they must be free from major sins is another unacceptable condition that
rarely can be met through public scrutiny.

Now, let's assess the problem taking the
issue of witness requirements into consideration. As soon as either (a)
a woman files a complaint of rape or (b) a woman accused of zina in turn
brings up the charge of rape, the burden of proof shifts to the accuser.
If the charge is initiated as a rape charge, the accuser must come up with
four male, adult, pious, credible Muslims to prove her case. Anything
less would mean that the accuser can be punished of zina and (and often
also false accusation). So, there is a double jeopardy. If the woman was accused of
zina and in turn brings up the charge of rape (zina bil jabr - an
oxymoron), once again, now the burden is on her to meet the same witness
requirement. She can't bring female, non-muslim or minor witnesses. She
also can't bring either witnesses
who are not pious (to the extent that they are free of major sins) or witnesses who have not
been eye-witnesses of the
"penetration." In such cases, she would by default be charged
of zina.

It is this predicament that has entrapped women under Hudood laws.
The problem is further compounded by two additional factors. Since the
punishment for rape (zina bil jabr) is greater than just zina
(adultery), the accused rapist has all the incentive to claim that it
was an adulterous relationship. This is also typical in most rape
related charges in western countries. Thus, when the rape
charge is brought, the burden of proof falls on the accusing women.
However, since women's witness is not accepted and rapes rarely occur in
public view to have four reliable, pious Muslim witness who have sighted
the penetration, generally the rape charge can't be made to stick.

It
must also be assumed that witnesses are not manipulated by the power of
status or wealth by the rapist. "There is evidence that police have deliberately failed to file charges against men accused of rape, often using the threat of converting the rape charge into a zina prosecution against the female complainant to discourage women from
reporting" [Quraishi, p. 291] Furthermore, "the Pakistani
police proved to be disappointingly criminal in practice, by refusing to
register cases under Zina bil-Jabr i.e. rape and recording it
instead as a case of Zina i.e. adultery." [Aslam, 2003]

Actually, the law
enforcement agencies of Pakistan go much further in subverting justice
through their gender-bias.

Police officials often
fail to file reports, lose reports, or even “persuade” women not
to file a report through harassment or even abuse. In the unlikely
event that a report is even filed, the police often conduct improper
investigations or fail to even investigate the crime at all. As a
result of these inadequate or non-existent investigations, men who
have been reported to have committed these violent acts are often not
arrested or charged with the crime.

A prevailing view among
police officials is that women who have been raped are either scorned
lovers or fear family reprisals, thus they “fabricate” a story to
frame the men. Police officials often view domestic violence,
including honor killings, as a private matter to be resolved within
the family or tribe, not the criminal justice system. [Bettencourt, p.
12]

As is all too well known, most Muslim
societies, including Pakistan, are strictly hierarchical society, where
an authoritarian structure prevails at almost all levels, and domestic
violence is also widespread.

"Male dominance and
commodification subjects women to violence on a daily basis in Pakistan.
Approximately seventy-percent to ninety-percent of Pakistani women are
subjected to domestic violence.4 Typical violent acts include, but are
not limited to, murder in the name of 'honor,' rape, spousal abuse
including marital rape, acid attacks, and being burned by family members
(often labeled an accident by family members). A rape occurs in Pakistan
every two hours with one in every 12,500 women being victims of rape.
Five women per day are killed and two women per day in the region of
Punjab alone are kidnapped.5 Incidents of women being burned by men
throwing acid, an act that severely disfigures its victims, has
increased as well." [Bettencourt 2000, quoting Human Rights
Commission of Pakistan]

The typical rapist is not a stranger in a
community, and usually
more powerful in various ways than the victims. Thus, witness
manipulation by the rapist is a very common problem.

This problem is further exacerbated by
the reality that most of the victims of rape are from socio-economically
disadvantaged strata of the society. Many of them are illiterate and rarely any of them have literacy about the laws and
ordinances. "According to the 1999 report by the Human Rights
Commission of Pakistan, only two percent of Pakistani women participate
in the formal sector of employment. Ninety-three percent of rural women
and seventy-two percent of urban women are illiterate."
[Bettencourt, 2000, p.3] While
women of diverse background can get accused, ultimately, it is those
"women who cannot afford lawyers are those most likely to be
charged and jailed" [Khan, p.2].

Studies have shown that many of those women who have been
subjected to the existing laws and/or are languishing in prison under
Hudood laws don't know or understand as to what happened to them. Many
of them didn't know or understand the especial jeopardy of accusing
another party of rape, even when they were raped.

As the Ordinance of 1979 stated, the
Hudood laws were meant "to bring in conformity with the injunctions of Islam the law relating to the Offence of
Zina." However, it is now all too clear that rape has been usually
made subject to ta'zir (a discretionary punishment based on judge's on
interpretation, specific to the school of jurisprudence prevailing in
the country), not Hadd (irreducibly applicable punishment specified by
the Qur'an and Sunnah). Classifying rape under zina has exposed women to
double jeopardy and emboldened the men who seek to impose themselves
upon vulnerable women.

Although the Hudood Ordinance was promulgated in 1979, it seems that now, 8 years later, men have become more confident of the manner in which they can get away with the sexual exploitation of
women-rape. [Sumar and Nadvi, 1987]

Based on the predicament of these women, many of them are double victims (first raped, and then sexually
assaulted by the police or prison guards). Where Islam is categorically for
justice, especially to protect the weak and vulnerable, the current
Hudood laws not only have failed to deliver justice, but in reality has
become a legal nightmare for the less powerful and the disadvantaged
segments of the society.

Some relevant suggestions

All those women who are languishing in
jail due to the unacceptably faulty Hudood laws must be freed and Muslim
men and women must come forward for a campaign to free them. The religious
scholars have a special responsibility before the people (and before
Allah) to educate themselves about the consequences of the laws they
promulgate and uphold on these hapless women.

To better ensure the moral values of the
society and uphold Islam's commitment to justice, several steps must be taken
to address the pertinent problems.

1. Rape needs to be legally separated
from Zina.

Zina bil jabr is not just an oxymoron,
but also a proven legal black hole for women, where they are getting
entrapped and their lives ruined. It is an unintended, but serious and
unacceptable consequence of the current Hudood laws. Rape needs to be tried under assault laws. Further
exploration of this matter is needed to better deal with rape from the
viewpoint of Islamic laws.

2. Woman's witness must be legally
recognized

There is absolutely no reason why female
witness wouldn't be recognized in the name of Islam. The orthodox
position that women's witness is not equal to men's needs to be
confronted and changed based on the very principles of Islam that is meant
to be just and balanced. In the short run,
there should be necessary changes to recognize female witness in such
pertinent cases. In the long run, both Islamic fiqh and the established
laws need to put male and female witness at par.

3. Women's participation in the Islamic legal discourse and legal system
needs to be ensured

One of the fundamental problems in
Islamic legal discourse is absence of participation of women after the
glorious earliest period after the Prophet. Gradually, the Islamic
discourse in general and legal discourse in particular became an
exclusive domain for men. The lack of women's presence in this field was
not merely a loss of balance from the gender perspective, but also the
male-exclusive legal discourse produced laws and codes that were most
restrictive and insensitive in regard to women's concerns or
viewpoints. [Ramadan, pp. 139-143]

Muslims need to reject any legal
discourse and legal system that either fails to accommodate or work
toward ensuring the necessary participation of women. Women's
participation needs to be facilitated in the formulation of Islamic
laws. Their participation is also a must at the judicial level. Without
it, it is neither fair nor Islamic.

4. Islamic law must come through an
Islamic political system characterized by representation, participation
and accountability.

Hudood Ordinances of Pakistan were
introduced and enacted under the military junta, who took over the power
through military coup, which put aside the constitution as well as all
elected bodies. General Ziaul Huq formed a Majlis-e-Shoora (a
consultative body), which was unelected and it was that body that enacted
the Hudood laws. [Jahangir and Jilani, p. 31]

Islam is incompatible with authoritarian,
autocratic, hereditary or hegemonic system. After the Prophet Muhammad,
rightly-guided leaders were based on a constitutional/representative,
participatory and accountable system. This system got subverted through
a counter-revolution, leading to an unislamic system, where it became
hereditary and/or autocratic. [Farooq_1, 2002]

Whenever the political system doesn't
have Islamic validity, as was the case of the military junta late
General Ziaul Haque, Islamic laws introduced under such system would be
naturally vulnerable to abuses and failures at the core. Muslims need to reject any
effort to introduce so called Shari'ah laws under unrepresentative,
Islamically-illegitimate regimes.

5. Islamic law requires independence
of judiciary and rule of law, where protection of the weak and
vulnerable must be a priority

In any society, characterized by
widespread illiteracy and poverty on one hand and serious
maldistribution of power and wealth, there has to be additional
protection for the weak and the vulnerable. For this, independence of
judiciary is a must and women's participation in this area is also
vitally important.

6. Requirement on the framers of Islamic law to have ongoing empirical
work

Of course, there was hardly empirical
work to study the social phenomenon as a consequence of such laws and
codes. How do the laws pertaining to divorce impact the society in
general and women in particular is never studied as part of empirical
social research. The entire approach is deductive and the discourse
remains in the realm of books. Indeed, the Islamic laws are exclusively
text- or book-oriented, without the benefit of life-orientation.
[Farooq_3]

What would be or was the consequence of
the Hudood laws is usually not studied by those Islamic scholars or
experts who formulate the laws and codes. Islamic scholars and
educational institutions with which they are affiliated need to
undertake empirical social research before AND after formulating and
implementing laws.

7. Parallel to others, Ulama need to
monitor any abuse and failure of the system, including any vigilante abuse

Any society based on rule of law or
Shari'ah must not allow individuals or groups to take law into their own
hands. There have been several widely reported cases in various parts of
the Muslim world, where a village tribunal without any legal or Islamic
authority has given fatwa and attempted to enforce it, the target of
which is usually women.

Our Islamic scholars and experts need to
extend their role beyond scholarly and legalistic works. They also need
to have organized efforts to keep a tab on the legal system's abuse and
failure and actively work with the victims for protecting their rights.
There is a serious human rights issue that often get ignored by the
religious scholars, and they fail to look at the problems from practical
social as well as human view points.

8. Ta'zir does not have any divine
sanction and thus its human fallibility must be acknowledged and taken
into consideration

There is a gross misunderstanding
as well as misrepresentation that entire gamut of Islamic laws is divine
and thus sacrosanct. Quite the contrary, even in case of Hadd
(Qur'an-specified punishment for certain major offences), the
interpretation at the level of details and its implementation is all too
human. The issue of Ta'zir (discretionary punishment estimated by a judge that is not
specifically prescribed in the Qur'an or the Sunnah) is particularly
relevant here.

If the evidence
falls short of what is required for maximum punishment but the case is
still proven, the accused is charged under a lesser class of
punishment known as Tazir.
Here, unlike in the case of Hadd,
women may testify on their own behalf if the judge should so allow.
The Tazir punishment
for adultery or fornication is up to ten years in prison, thirty
lashes with a whip and a fine of an indeterminate amount. The Tazir
punishment for rape is up to twenty-five
years in prison and thirty lashes. For the purposes of Tazir,
no distinction is made between a married and unmarried offender.
Insufficient evidence to impose a Hadd punishment
may still result in conviction under Tazir.
When women are unable to prove rape under Hadd
or even Tazir they
can be charged with illicit sex under Tazir.
[Khan, p.2]

While a judge may be guided by the Qur'an and Sunnah and other Islamic legal precedence, the
fact of the matter is that the entire matter of ta'zir is discretionary
and as such it is fully loaded with human interpretation and factors.
This must not be given a level of sanction as if it is divine.

By allowing prosecution for zina as a ta’zir punishment, and thereby
loosening the evidentiary rules, the Pakistani Zina Ordinance has succeeded in
contravening the very Qur’anic verse upon which it is based. In fact, zina is
the only hadd crime for which the Qur’an sets out a specific punishment for
not meeting its strict evidentiary rules. The Qur’an thus indicates that,
unlike other hadd crimes, there can be no ta’zir punishment for zina. [Quraishi,
p. 312]

9. Raped victims must not be further
victimized by forcing the rapists to marry them

One particularly troubling problem is
when a local, informal tribunal forces a rapist to marry the raped
victims. It is considered to be a punishment for the rapist, without
any consideration for the victim's consent to such marriage or the
life time consequence for the victim. In reality, it becomes a double
whammy for the raped victim, in both cases (rape and subsequent
marriage) deprived of her freedom and dignity. There are some
precedents reported from Hadrat Umar. However, Hadrat Umar offered
this as an option to the victim [Norman, p. 3], which is generally not
the case in many rural communities of our time. Furthermore, even if
Hadrat Umar offered this as an option, this was his juristic position,
not necessarily with any support from the Qur'an or the Prophet.

Conclusion

In its essential guidance
for mankind, Islam is wholesome and balanced. Its primary emphasis is on
the inner God-consciousness (taqwa) that motivates people to be
informed and respectful of the moral values and standards. To balance
this inner consciousness as a human beings compass, Islam also has some
(actually, few) well-defined limits (Hudood) that are in
consonance with universally recognized values. Parallel to nurturing
God-consciousness and fostering an environment where people uphold
values due to their volition than enforcement, Islam has those few
limits (Hudood), the transgression of which is regarded
abominable enough to warrant harsh consequence. However, it is important
to note that since all these not just are for human beings, but also to
be upheld and implemented by fallible human beings. Thus, there are
appropriate level of checks and balances to ensure that justice and
moral values do not become convenient or easy substitutes.

Islam teaches that human
life is sacrosanct. Islam also take moral values very seriously. Thus,
while in some cases (Hudood, to be specific) very harsh
punishments have been specified, the threshold of conviction has been
set so high that it is virtually impossible to convict someone, except
in EXTREMELY RARE situation. For example, conviction of Zina requires
four adult, credible witnesses, who had directly witnessed the actual
penetration. This is such a high threshold that during the time of the
Prophet, there was never any conviction based on charges, but only a
handful exemplary cases of confessions, who believed that that they have
transgressed against God's guidance and they wanted to be punished so
that they receive salvation in the life hereafter. These sensibly high
threshold has been turned onto its head by applying the threshold for
rape. This is further exacerbated by corrupt law enforcement agency, a
judiciary that is not independent, a system that is insensitive to
injustice and human suffering, and a society where most people are poor
and uneducated become easy prey or victim.

Without rectifying those
abetting factors, attempts to enforce Hudood, even as envisioned
in Islam, can be unjust. When Hudood implementation is attempted
in a society that is rotten at its core (corrupt police, non-independent
judiciary, an authoritarian system based on an elitist and hierarchical
power structure, wide spread poverty and illiteracy, openly tolerated
promiscuous entertainment, legalistic religious establishment that is
insensitive to issues at the human level), Islam that is supposed
to uphold justice and moral virtue through people's own volition and
consciousness can itself become victim of such perversion in its own
name. Muslims have the collective and mutual responsibility to be better
educated about Islam and to uphold its noble and balanced guidance for
their own welfare and to offer a model worthy of emulating.

As a long-waited
development, almost 25 years since the Hudood Ordinance in Pakistan, the Ulama are waking up to the wrongs and ills of the
Hudood Ordinance, the way it was enacted and implemented. But better
late than nenver. This
recognition of the mistakes is important. The Ulama need to be humble
that they are fallible, and learn from this lesson to preempt such
egregious wrongs in the name of Shari'ah in future. They also need to
have some ex-post reflection as to how and why such serious mistakes in
the name of Hudood or Shari'ah occurred.

We now hope that beyond the
recognition of mistake and ills, the relevant and appropriate reforms
would be made without delay, the wronged parties would be compensated
and extensive public awareness campaign would be undertaken to help the
victims be reassimilated in the society.